Thomas Potter, III

Thomas Potter, III

Burr & Forman

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SEC Sweep on NDAs Restricting Whistleblowers

The Wall Street Journal reported Thursday that the SEC is in the midst of a sweep to crack down on companies’ use of NDAs or employment agreements that might impede whistleblower reporting in violation of Dodd-Frank...more

3/3/2015 - Confidentiality Agreements Dodd-Frank Non-Disclosure Agreement SEC Strategic Enforcement Plan Whistleblower Protection Policies Whistleblowers

“No News Is Bad News” on BSA Compliance

Addressing SIFMA’s Anti-Money Laundering (“AML”) conference Wednesday, SEC Enforcement Director Andrew Ceresney said that – when it comes to AML – the lack of red flags itself is a red flag....more

3/2/2015 - Anti-Money Laundering Bank Secrecy Act Enforcement Actions SAR SEC SIFMA

Banking & Financial Services E-Note - February 2015

In This Issue - - Coquina Investments v. TD Bank: Examining a Non-Party’s Invocation of the Fifth Amendment - SideBAR - Dodd-Frank Act Update Financial Fraud Law Report - Post-Crawford FDCPA Claim...more

3/2/2015 - Banking Sector Banks Dodd-Frank FDCPA Fifth Amendment Financial Institutions

High Court Divided: Is A Fish A Tangible Object?

Gulf fisherman John Yates was cited by a federally-deputized Florida Fish & Wildlife officer for having caught a few red grouper that were about an inch under the 20” minimum limit at the time (they’d have been legal under...more

2/27/2015 - Destruction of Evidence Evidence Sarbanes-Oxley SCOTUS US v Yates

Commissioner Piwowar on SEC & Fairness: Physician Heal Thyself?

In an address Friday at the 44th annual “SEC Speaks” conference, SEC Commissioner Michael Piwowar suggested that the Securities Exchange Commission might do well to apply its own rules to itself. He suggested the Commission...more

2/24/2015 - Administrative Hearings Enforcement Actions Market Participants SEC

SEC Seeks Chevron Deference to Unnecessary Ruling that Dodd-Frank 180-Day Enforcement Directive Doesn’t Matter

In a brief filed last week, the SEC urged the D.C. Circuit to give Chevron deference to the Commission’s unnecessary conclusion that Congress’s 180-day enforcement deadline doesn’t matter. The conclusion is consistent with...more

2/12/2015 - Chevron Deference Dodd-Frank Enforcement SEC

FINRA Proposes Higher Arbitration Cancellation Fees

FINRA Dispute Resolution filed with the SEC a proposed change to Code of Arbitration Rules 12214 and 12601 (and industry Rules 13214 and 13601) to increase late cancellation fees from $100 to $600 per arbitrator and expand...more

2/11/2015 - Arbitration FINRA Proposed Amendments SEC

S&P’s $1.4BN Settlement with DOJ and State AGs on RMBS/CDO Ratings

On February 3, the Department of Justice and 19 State Attorneys General announced their $1.375 Billion settlement of DOJ’s FIRREA suit and related State AG actions against Standard & Poor’s and its parent McGraw-Hill...more

2/9/2015 - Attorney Generals Collateralized Debt Obligations DOJ Enforcement Actions FIRREA Rating Agencies RMBS S&P SEC Settlement

SEC and FINRA Issue Cyber Security “Alert”

The SEC and FINRA each issued February 3 cyber security “alerts” summarizing last year’s sweep exams and pointing out the obvious. In two parts, the SEC’s press-release covered the results of the Commission’s 2013-2014 sweep...more

2/6/2015

SEC Dismisses Administrative Insider-Trading Suit Against Peixoto

On January 29, the Commission dismissed its insider-trading suit against Canadian analyst Jordan Peixoto in connection with his purchase of puts on the stock of Herbalife in advance of a negative hedge fund presentation on...more

2/4/2015 - Dismissals Enforcement Actions Hedge Funds Herballife Insider Trading SEC

SEC & AGs Fine & Suspended S&P for MBS Rating Violations

The SEC and the Attorneys General of New York and Massachusetts this week fined Standard & Poor’s almost $77 million, suspended S&P from conduit-fusion CMBS ratings work for a year and imposed other undertakings, for...more

1/27/2015 - Administrative Fines Attorney Generals CMBS RMBS S&P SEC

SEC Announces 2015 Exam Priorities

The SEC’s Office of Compliance Inspections and Examinations (“OCIE”) released its 2015 Exam Priorities January 13. Director Andrew Bowden’s annual list details OCIE’s subject of focus for the coming year....more

1/16/2015 - Industry Examinations Investment Adviser Municipal Advisers OCIE SEC

FINRA Panel Precludes Evidence & Awards Punitives as Discovery Sanction

An all-public panel of FINRA arbitrators entered a preclusion order and awarded $750,000 in punitive damages for Respondents’ failure to participate in discovery and disregard of pre-hearing filing requirements....more

1/14/2015 - Arbitration Discovery FINRA Punitive Damages Sanctions

FINRA’s 2015 Exam Priorities

The Financial Industry Regulatory Authority (“FINRA”) released its 10th annual Exam Priority Letter earlier this week (Jan. 6, 2015). The so-called “Errico Letter” advises broker-dealer member firms of the operational risks...more

1/13/2015 - Anti-Money Laundering Broker-Dealer Conflicts of Interest Cybersecurity FINRA Marketing Risk Assessment Strategic Enforcement Plan

Corporate & Tax E-Note - December 2014

In this issue: - SEC Crowdfunding Rules Delayed Until October 2015 - Mega M&A Experiencing One of Biggest Booms in History - Some Small Business Owners Say Tax Break Extension Not Enough - 2014...more

12/22/2014 - Banking Sector Banks Corporate Taxes Crowdfunding FASB FCPA Financial Markets Push-Out Requirements SEC Small Business Tax Extenders Whistleblower Awards

Banking and Financial Services E- Note - December 2014

In This Issue: - Congress Move to Roll Back Bank 'Push-Out' Regulation Meets Anger - NCUA Calls for Retailers to Cover Data Breach Costs - Regulators Propose 8 Biggest Banks Increase Capital...more

12/22/2014 - Banking Sector Banks Capital Requirements CFPB Data Breach Federal Reserve Financial Regulatory Reform Medical Debt NCUA Push-Out Requirements Retailers

2nd Circuit Narrows Scope of Tippee Liability for Insider Trading

The US Second Circuit this Wednesday narrowed the scope of “tippee” liability for insider trading, rejecting the “doctrinal novelty” of recent government prosecution theories. In United State v. Newman, Nos. 13-1837-cr c/w...more

12/15/2014 - Dell Hedge Funds Illegal Tipping Insider Trading Material Nonpublic Information Nvidia Portfolio Managers Securities Securities Fraud US v Newman

SEC Sanctions 8 Auditors in “Broken Gate” Enforcement Sweep

The SEC this week issued cease-and-desist orders against eight auditors, fining them $140,000 collectively, for violating auditor independence rules by preparing the very broker-dealer financials they were to audit....more

12/11/2014 - Auditors Audits Broken Gates Broker-Dealer Financial Statements PCAOB Regulation S-X Sanctions SEC

Court Sets Aside SEC’s First Muni “Control-Person” Settlement

Earlier this month, the SEC used a “control-person” charge in a settled action against an elected municipal official in connection with municipal bond offering. Enforcement touted that “first” on the Monday after: “An...more

11/25/2014 - Dodd-Frank Enforcement Actions Municipal Bonds Municipalities Public Officials SEC

FINRA Solicitor Pay-to-Play Rules Complete IA & MSRB Suite

Last Friday, FINRA proposed pay-to-play prohibitions that parallel and implement similar Investment Adviser Act provisions in Rule 206(4)-5. That IA Rule prohibits investment advisers from paying third-parties to solicit...more

11/21/2014 - FINRA Government Entities Investment Advisers Act of 1940 MSRB Pay-To-Play Third-Party Relationships

Scalia & Thomas Look to Take on SEC’s Insider-Trading Theory

In an unusual three-page concurrence to a November 10 cert denial, Justice Scalia (joined by Justice Thomas) virtually called for a case that would subject the SEC’s insider-trading interpretations to scrutiny. Because courts...more

11/14/2014 - Chevron Deference Insider Trading SCOTUS SEC

SEC Ramps Up Municipal Enforcement

The SEC continues to ramp up its Enforcement efforts in the municipal-securities realm. The agency announced a series of settled actions on November 6....more

11/11/2014 - Broken Windows Joint and Several Liability Municipal Bonds Municipal Securities Issuers Municipalities Personal Liability SEC

Crackdown on Employer NDAs Without Whistleblower Protections

An October 27 letter from Rep. Maxine Waters and seven other House Democrats (from the Financial Services & Oversight Committee) asked the SEC to double down on scrutiny of employer confidentiality agreements that might...more

11/4/2014 - Confidentiality Agreements Dodd-Frank Employer Liability Issues FCPA Legislative Committees Non-Disclosure Agreement SEC Whistleblower Protection Policies

Arbitration vs Forum-Selection Clauses: Chicken & Egg Dilemma?

Last week the Fifth Circuit weighed in on how inartfully crafted arbitration and forum-selection clauses might trump one another. Together with recent decisions from the Second and Ninth Circuits – each with cert petitions...more

11/3/2014 - AmeriPlan Arbitration Contract Drafting Federal Arbitration Act Forum Selection Clause Goldman Sachs Petition for Writ of Certiorari SCOTUS

MSRB Proposes Gift Limitations for Municipal Advisors

The MSRB last week proposed an extension of its gift-limitations Rule G-20 to encompass municipal advisors. The Proposed Rule generally limits gifts in relation to municipal securities or advisory services to $100 per year. ...more

10/31/2014 - MSRB Municipal Advisers Municipalities

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